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The Protect Illinois Communities Act (Act) restricts firearms and related items that the Act defines as “an assault weapon, assault weapon attachment, .50 caliber rifle, or .50 caliber cartridge” (collectively, assault weapons) (720 ILCS 5/24-1.9(b) (West 2022)) and “large capacity ammunition feeding device[s],” commonly known as large capacity magazines (LCMs) (id. § 24-1.10(b)). Certain restrictions do not apply to (1) law enforcement agencies and individuals who complete firearms training as part of their employment in law enforcement, corrections, the military, and private security (trained professionals) (id. §§ 24-1.9(e), 24-1.10(e)) and (2) individuals who possessed assault weapons or LCMs before the restrictions became effective (grandfathered individuals) (id. §§ 24-1.9(d), 24-1.10(d)).
The circuit court of Macon County entered declaratory judgment for plaintiffs on two claims that the restrictions are facially unconstitutional because the exemptions deny the “law-abiding public” equal protection (Ill. Const. 1970, art. I, § 2) and constitute special legislation (id. art. IV, § 13) under the Illinois Constitution. Defendants appeal directly to this court. Ill. S. Ct. R. 302(a)(1) (eff. Oct. 4, 2011).
Plaintiffs defend the judgment on equal protection and special legislation grounds and allege for the first time that, regardless of the exemptions, the restrictions violate the second amendment to the United States Constitution. U.S. Const., amend. II. They further argue that Public Act 102-1116 (eff. Jan. 10, 2023), which added sections 24-1.9 and 24-1.10 to the Criminal Code of 2012 (720 ILCS 5/1-1 et seq. (West 2022)), violates the three-readings requirement of the Illinois Constitution and that the circuit court erred in ruling to the contrary. Ill. Const. 1970, art. IV, § 8(d).
First, we hold that the exemptions neither deny equal protection nor constitute special legislation because plaintiffs have not sufficiently alleged that they are similarly situated to and treated differently from the exempt classes.
Second, plaintiffs expressly waived in the circuit court any independent claim that the restrictions impermissibly infringe the second amendment.
Third, plaintiffs’ failure to cross-appeal is a jurisdictional bar to renewing their three-readings claim.
Accordingly, we reverse the circuit court and enter judgment for defendants on the equal protection and special legislation claims. We express no opinion on the potential viability of plaintiffs’ waived claim concerning the second amendment.
Justice Rochford wrote the opinion. Chief Justice Theis and Justices Neville and Cunningham concurred in the judgment and opinion. Justice Holder White dissented, with opinion, joined by Justice Overstreet. Justice O’Brien dissented, with opinion.
More in a bit.
…Adding… Justice Mary K. O’Brien was the lone Democratic dissenter…
I respectfully dissent because I do not find that the classifications at issue in this legislation further its claimed purpose and it is thus violative of the special legislation provision in our state constitution.
The special legislation clause states:
“The General Assembly shall pass no special or local law when a general law is or can be made applicable. Whether a general law is or can be made applicable shall be a matter for judicial determination.” Ill. Const. 1970, art. IV, § 13.
“This court has consistently held that the purpose of the special legislation clause is to prevent arbitrary legislative classifications that discriminate in favor of a select group without a sound, reasonable basis.” Best v. Taylor Machine Works, 179 Ill. 2d 367, 391 (1997). Under the clause, the General Assembly may not confer “a special benefit or exclusive privilege on a person or a group of persons to the exclusion of others similarly situated.” Id
We employ a two-part test to determine whether a law is special legislation. Piccioli v. Board of Trustees of the Teachers’ Retirement System, 2019 IL 122905, ¶ 18. The first determination is whether the classification discriminates in favor of a select group to the exclusion of a group similarly situated. Id. If the classification does discriminate, we next determine whether the classification is arbitrary. Id. We use the same standards applicable to equal protection challenges to decide if a classification is arbitrary. In re Estate of Jolliff, 199 Ill. 2d 510, 520 (2002)
Unlike the majority, I would find that the plaintiffs are similarly situated in light of the purpose of the legislation. In re M.A., 2015 IL 118049, ¶ 29 (“The determination whether individuals are similarly situated generally can only be made by considering the purpose of the particular legislation.”). We do so by considering whether the classification is “based upon reasonable differences in kind or situation, and whether the basis for the classifications is sufficiently related to the evil to be obviated by the statute.” Best, 179 Ill. 2d at 394.
The majority finds that the plaintiffs are not similarly situated to the exempted classifications and ends its analysis on that basis. To make the similarly situated determination, this court must view the classifications in light of the purpose of the legislation and the evils it seeks to remedy. In re Belmont Fire Protection District, 111 Ill. 2d 373, 380 (1986). The majority acknowledges that the legislation itself does not state a purpose but concludes that the defendants infer the intent of the Protect Illinois Communities Act (Act) (see Pub. Act 102-1116 (eff. Jan. 10, 2023)) is “to reduce the number of assault weapons and LCMs in circulation” because they are often used in mass shootings. Supra ¶ 51. The majority correctly reiterates that, - 32 - to determine whether the plaintiffs are similarly situated, the legislative purpose of the Act must frame its analysis.
The majority, however, did not consider whether the classifications further the legislative purpose of reducing the number of assault weapons and large capacity magazines (LCMs) and consequently the number of mass shootings. I find they do not and will not reasonably remedy the evils the legislation was designed to combat. Importantly, exempting the professionals and grandfathered groups does nothing to prevent the proliferation of out-of-state assault weapon possession or prevent those weapons from being used for mass shootings in this state or elsewhere. The legislation does not prevent weapon manufacturers, some located within this state, from continuing to sell assault weapons and LCMs to out-of-state residents, who may then potentially perpetrate a mass shooting. Because 60% of the weapons used in crimes in Illinois come from out of state, the legislation does not further its purported goal of reducing the number of weapons in the state.
Similarly, the enumerated professional groups who are exempted based on their firearm training and roles as societal protectors are presumably not apt to engage in mass shootings, and their ability to possess assault weapons and LCMs does not reduce either the number of assault weapons and LCMs or the threat of mass shootings. They may continue to possess and purchase the items the legislation bans nearly everyone else from possessing and purchasing. Moreover, not all the professionals are limited in the possession and use of their assault weapons to on- duty conduct, which places them in the same circumstance as members of the general public who may also have weapons training. For example, retired peace officers may continue to purchase and possess assault weapons despite that they no longer have any peacekeeping responsibilities or obligations. They are no different from private citizens who hold Firearm Owner’s Identification cards, like the plaintiffs in this case, but are granted special treatment. Our constitution’s prohibition against special legislation does not allow a law to afford special treatment to one group of citizens without a rational basis to do so. The special legislation provision in the constitution prohibits the different treatment of people based on criteria unrelated to the legislation’s purpose.
There’s more to the dissent, so click here and scroll down.
…Adding… The two Republican justices dissented on a legislative process question…
The majority says the circuit court invalidated certain sections of the Protect Illinois Communities Act (Act) (see Pub. Act 102-1116 (eff. Jan. 10, 2023)) and upheld others and thus contends the three-readings-rule issue is not now before us because plaintiffs should have cross-appealed from the denial of relief on that claim. However, plaintiffs are properly before this court, and both parties have had ample opportunity to address the procedural requirements of the Illinois Constitution and their impact on the validity of the Act here. Moreover, if the invalidated sections are before us (by way of the State’s appeal), then a finding of a three-readings-rule violation on those sections (as we may affirm on any basis in the record) requires a similar finding as to the entire Act because the Act was passed as one. Thus, I would find the long-standing principle cited above in Ultsch and numerous other cases allows us to consider the three-readings issue. […]
Given the legislature’s repeated failures, continued adherence to the enrolled- bill doctrine should no longer be countenanced. The doctrine “is contrary to modern legal thinking, which does not favor conclusive presumptions that may produce results which do not accord with fact.” […]
Here, it is abundantly clear that the Protect Illinois Communities Act was not before the House or the Senate on three different days in each house. On January 8 and 9, 2023, the original Insurance Code bill was gutted, and the new amendments, including the restrictions on assault weapons and large-capacity magazines, were considered and approved in the Senate. The new bill setting forth the Protect Illinois Communities Act then only spent one day in the House before it was passed and signed into law.
posted by Rich Miller
Friday, Aug 11, 23 @ 9:05 am
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I am having a hard time understanding applying a standard that this dissent would suggest exists. Wouldn’t it suggest reduced fee license plates are unconstitutional?
Comment by Candy Dogood Friday, Aug 11, 23 @ 9:22 am
Hoping someone brighter than I am can explain the O’Brien dissent. Withholding judgment until I understand it better, but very surprised to see it for sure.
Comment by Lincoln Lad Friday, Aug 11, 23 @ 9:29 am
“retired peace officers may continue to purchase and possess assault weapons despite that they no longer have any peacekeeping responsibilities or obligations.”
I agree with this dissent.
I’m not sure if these allowances are put into the law just to get more people on board, but with the large Democratic majority afforded in the legislature I can’t see this being a needed tactic to pass legislation.
Allowing active duty an allowance does make sense, because of the reasoning of the North Hollywood shootout years ago. That event specifically identified why active and responding police should be able to be granted an exception.
Hopefully the legislature uses this non-binding pushback as ‘an out’ during future legislative debates to stop giving so many exceptions to police.
Comment by TheInvisibleMan Friday, Aug 11, 23 @ 9:32 am
“… despite that they no longer have any peacekeeping responsibilities or obligations.”
By that reasoning, retired law enforcement concealed carry shouldn’t exist. The National GOP imposed it nationwide in 2004. Didn’t hear any complaints about “special groups” then.
Comment by Anyone Remember Friday, Aug 11, 23 @ 9:37 am
Knowing the make-up of the court this was an inevitable loss for Caulkins. I will say that the O’Brien break from the other Dem judge makes it a tenuous victory for the state.
Let’s see when the more substantial 2A claims against the bans are heard at SCOTUS, the outcome will likely be different than today.
Comment by Donnie Elgin Friday, Aug 11, 23 @ 9:39 am
===makes it a tenuous victory for the state.===
No different than a bill passing 60-30-1. It’s still a law.
Comment by Rich Miller Friday, Aug 11, 23 @ 9:41 am
The retired police exception was put in to get the FOP to be neutral on the bill, if I recall correctly.
Comment by Dupage Dem Friday, Aug 11, 23 @ 9:42 am
I’m pleased with the ruling. Assault weapons need to be prohibited. I need to read the opinion and O’Brien’s dissent to further understand her point of view. As to the MAGA GOP judges, they are totally out of line with precedent on legislative procedures and wrong.
Comment by Norseman Friday, Aug 11, 23 @ 9:43 am
===can explain the O’Brien dissent===
Heh.
The existence of her dissent is probably more important than what it says. Some Republicans have been insisting that MKO and Rochford should recuse themselves because Pritzker contributed a bunch of money to their campaigns, implying that both of them were bought and paid for, which is an argument they never make about their own folks.
Comment by Rich Miller Friday, Aug 11, 23 @ 9:46 am
If part of the dissent is about process…
A big tell, always, be it executive, legislative, or judicial, is the idea of “process” and a steering away from substance, it’s a tell to the idea of where the losing begins. You are losing on the substance of the argument.
It’s exactly like this.
===tenuous victory===
I’ve yet to see any law be seen by the measure of the strength of its passage.
This is an argument to process, not the substance of the end.
Comment by Oswego Willy Friday, Aug 11, 23 @ 9:48 am
===I’ve yet to see any law be seen by the measure of the strength of its passage.===
True, but there’s an old saying: The more votes a bill gets, the less it usually does.
Comment by Rich Miller Friday, Aug 11, 23 @ 9:56 am
===The more votes a bill gets, the less it usually does.===
Indeed. The middle ground is like biting with only your gums, not those teeth.
Good point.
Comment by Oswego Willy Friday, Aug 11, 23 @ 9:58 am
The court didn’t address the second amendment claim, or the three readings claim because those claims were not properly before the court.
The second amendment claims will be addressed in the federal court cases. I don’t recall that Mr. DeVore raised the second amendment claim in his cases, although he did raise the three readings argument.
Bottom line, this isn’t the end of the litigation on this legislation, it is just the end of the beginning.
Comment by Just the Facts Friday, Aug 11, 23 @ 9:59 am
“Some Republicans have been insisting that MKO and Rochford should recuse themselves”
Whew. I’m sure this outcome will convince Republicans make rational arguments going forward.
Glad we never have to hear that again.
…(fast forward an hour) - Republicans react by immediately pointing out MKO should have recused herself because of the donations given by JB.
Comment by TheInvisibleMan Friday, Aug 11, 23 @ 9:59 am
It appears to my reading that O’Brien is saying the law lacks direct evidence to prove the law will reduce gun violence and mass shootings. She writes
” did not consider whether the classifications further the legislative purpose of reducing the number of assault weapons and large capacity magazines (LCMs) and consequently the number of mass shootings. I find they do not and will not reasonably remedy the evils the legislation was designed to combat.”
I understand this argument to be about proofs based on evidence. Unfortunately, because we are the first state to establish such a law, there can be no existing evidence.
Some laws are a leap of faith. The require serious reasoning, deeper scrutiny, and contain a moral element that must either be accepted or rejected on faith alone. This such a law. Reducing the number of semi-automatic weapons and the capacity of weapons only guarantees that the number of weapons will be reduced, the shooting of weapons with be slower, and the number of rounds fired fewer.
But I would suggest my primary counter to O’Brien’s argument is one of scope. The law seeks to create a long-term reduction, not an immediate one, by slowly reducing the ability to cause harm - the potential for evil as her claim suggests. In the long run, there will be fewer such weapons with limited capacities to cause evil. This is a logical outcome.
Whether or not there are fewer mass shootings with such weapons is for the future to prove or disprove.
Comment by H-W Friday, Aug 11, 23 @ 10:06 am
—The retired police exception was put in to get the FOP to be neutral on the bill, if I recall correctly.—
No. LEOSA preempts this law. It had to be included to obviate the issue from an appeal.
Comment by Wut Friday, Aug 11, 23 @ 10:06 am
===Bottom line, this isn’t the end of the litigation on this legislation, it is just the end of the beginning.===
It’s also the continual losing politics for the GOP.
First Republicans are dangerous to women’s health, now Republicans are fighting to make it more dangerous to society.
Politically, I hope in every swing district in Illinois abortion and assault weapons ban(s) are front and center and used to remind voters the dangers the GOP are to women, children…
Let it be the beginning.
Comment by Oswego Willy Friday, Aug 11, 23 @ 10:10 am
My second critique of O’Brien’s ruling is that she ignores the specified reason why retired officers are allowed to possess such weapons. She writes
=== not all the professionals are limited in the possession and use of their assault weapons to on- duty conduct, which places them in the same circumstance as members of the general public who may also have weapons training. For example, retired peace officers may continue to purchase and possess assault weapons despite that they no longer have any peacekeeping responsibilities or obligations ===
I would argue just the opposite. Such retired law enforcement officers in fact represent what the framers of the U.S. Constitution had in mind regarding a “well-regulated” militia. Former military and law enforcement professionals are uniquely situated in the sense that they have first, been strictly trained in the use of such weapons, second, strictly trained regarding when it is appropriate to use such weapons, and third, strictly trained in the law and its applicability the use of excessive force.
The fact that this class of citizens is no longer employed does not negate that training, other things being equal.
Comment by H-W Friday, Aug 11, 23 @ 10:13 am
I actually agree with Holder-White’s concern. Her argument is that when the original Insurance bill was completely gutted and then changed, it is wrong to conclude that the new bill had been considered thrice by the House. In fact, it had not.
This is a parliamentary issue regarding abuse of the rules of the Legislature. I have seen it on a small-scale (Faculty Senates) and have always found it distasteful.
When a new bill is introduced in the Senate, substantively different from the bill sent to it by the House (and vice versa), the clock should begin anew, regardless of customary and usual practices.
Only then do the people matter in the legislative process.
While I am pleased with the passages of the Protect Illinois Communities Act (and the SAFE-T Act), procedure matters. On this, Holder-White is absolute correct in my mind.
Comment by H-W Friday, Aug 11, 23 @ 11:02 am
“I find they do not and will not reasonably remedy the evils the legislation was designed to combat.”
Justice Mary Kay O’Brien is correct - based on FBI and U of Chicago data the majority of gun crimes are committed by individuals illegally in possession of said guns. Crooks don’t care about laws.
Comment by Donnie Elgin Friday, Aug 11, 23 @ 11:08 am
Is this case really about whether police and military personnel, acting in the course of their duties, are allowed to carry different weapons than the general public?
Maybe next, we can put a bunch of executive and judicial resources into a case to decide if water is, indeed, wet.
Comment by duck duck goose Friday, Aug 11, 23 @ 11:30 am
==Crooks don’t care about laws.==
That is probably the dumbest argument people make. That’s akin to saying since criminals violate the law then we shouldn’t have any laws. It’s an absolutely ignorant argument.
Comment by Demoralized Friday, Aug 11, 23 @ 11:37 am
HW, I don’t think the framers had retired Leo’s in mind since there weren’t any at the time. The militias were either slave patrols or to eradicate and fend off the indigenous people on the land they wanted.
Comment by Heat of Summer Friday, Aug 11, 23 @ 12:00 pm
===Such retired law enforcement officers in fact represent what the framers of the U.S. Constitution had in mind regarding a “well-regulated” militia.===
No, they really don’t. At the time Congress drafted and passed the 1st Amendment there were actual militias that existed and had been utilized and relied upon for several preceding decades. If they’d meant former constables or former sheriffs they would have referred to those as they had law enforcement personnel at the time.
Militias in the 1780s were actual organized entities with officers and under civilian control through formal government structures.
If you want to know what the framers of the Constitution actually thought about militias (the framers didn’t write the Bill of Rights) you can read Article 1, Section 8 of Constitution.
You also might want to consider the Militia Acts of 1792 to further understand how Congress actually viewed what a militia is and what they meant by well regulated.
People have been writing things down for thousands of years. You don’t need to imagine or invent what Congress meant in the 1780s and 1790s, they wrote it down. The Library of Congress has kept the records.
A reasonable policy maker would probably conclude it is a bad idea to place constables and sheriffs into positions of responsibility in the militia because they already have very important jobs. In the 1780s and 1790s they also had a very different idea of the concept of retirement and civil service pensions weren’t a thing yet.
Comment by Candy Dogood Friday, Aug 11, 23 @ 12:11 pm
== Reducing the number of semi-automatic weapons and the capacity of weapons only guarantees that the number of weapons will be reduced, ==
Maybe I’m splitting hairs here, but due to the grandfathering it won’t necessarily reduce the number of existing assault weapons or large capacity magazines. What it will do is limit additional weapons and magazines. Basically, they are hoping to reduce the numbers through attrition. So, literally, you are no more or no less safe today than you were yesterday.
Comment by RNUG Friday, Aug 11, 23 @ 12:33 pm
I have been reading this blog for years going back to the great pension debate and one of the very few commenters that makes any common sense is RNUG. Read his posts. He makes sense. Very few others do.
I will say that RNUG’s comment about no less safe today than you were yesterday not only applies today but it will apply until the thinking of crazy and criminal are figured out. I don’t see any of that happening anytime soon.
Comment by redleg Friday, Aug 11, 23 @ 1:00 pm
@ Heat and @ Candy
Of course, you are both literally correct.
But I would suggest the philosophical argument that guided the framers of the Second Amendment was the idea that states needed to have designated people at the ready in the event of invasion, anarchy, etc.
It is in that context that I would argue the framers did not mean “therefore everyone can own a lethal weapon, a weapon for war and for putting down insurrections.
I think they meant that states needed to have a what the military used to call, a “ready reserve” prepared to put down insurrections (not, a ready reserve capable of overthrowing the state).
LEO’s for better or worse, good ones and bad ones, have clearly received proper training (by law - see SAFE-T Act). When police and deputies and soldiers and marines retire, we cannot deny that they are trained in the use of weapons, both literally, and philosophically. They constitute a ready reserve, a “proper, well-trained militia.”
That is my bigger point. And because I believe that I believe this class of citizens is justifiably distinct from lay people who have simply had a course on “how” to use a weapon.
Comment by H-W Friday, Aug 11, 23 @ 1:02 pm
Overstreet and Holder White are relatively new to the Court so they may not know how well-ingrained the Enrolled Bill doctrine is. You can bet if this was a law they liked they would have no problem with it. And I fail to see how invalidating a law on a technicality is the modern approach to jurisprudence.
Comment by Big Dipper Friday, Aug 11, 23 @ 1:23 pm
==tenuous victory for the state.==
Counting votes is something clueless people do. A dissent is just ink on paper.
Comment by Big Dipper Friday, Aug 11, 23 @ 1:24 pm
===I would suggest the philosophical argument===
I understand the tendency to double down, but when it comes to the concept of militias they were not dealing with an abstract philosophical concept.
You also might want to look into what lawmakers and George Washington himself had to say about militias.
Your position is an unsubstantiated fantasy and I really doubt you’d have people like John Adams arguing that constables and sheriffs were a better “class of citizen” than everyone else and were deserving special rights and privileges. We’d just gotten rid of nobility.
===designated people at the ready in the event of invasion, anarchy, etc.===
I believe we refer to this as the National Guard these days.
===therefore everyone can own a lethal weapon, a weapon for war and for putting down insurrections===
In 1792 they literally drafted a law that permitted the conscription of every able bodied white male into a state militia. They weren’t picky.
Comment by Candy Dogood Friday, Aug 11, 23 @ 1:44 pm
This case might be decided by the U.S. Supreme Court if they decide to take it. I say this because in Bruen Clarence Thomas said ” we recognized that the Second and Fourteenth Amendments protect
the right of an ordinary law-abiding citizen to possess a
handgun in the home for self-defense” . That’s standing in federal court.
Comment by Steve Friday, Aug 11, 23 @ 3:12 pm
“… they literally drafted a law that permitted the conscription of every able bodied white male … .”
Except for, among others, stage coach drivers and … wait for it … elected officials.
Comment by Anyone Remember Friday, Aug 11, 23 @ 3:18 pm
@ Candy
Forgive my ignorance of the law, for I am not a lawyer, not trained in that area (my areas are discrimination and labor markets). Alas, I must confess illiteracy in the legal literature (though I am actually educated in colonial history being from Virginia).
If you do not mind, allow me to triple down on the moral issues behind this law. I concede yet again your second criticism as I did the first. Assuming you wish to take a literalist perspective again, I concede your third and fourth points.
In the final analysis, all laws consist of moral components - there can be no non-moral laws. King argued this, as did Ghandhi, Jesus, probably Mohammad too.
This 2023 decision was handed down by individuals who sometimes address the moral components of such laws. It is there in their opinion.
O’Brien clearly framed her opinion on philosophical grounds: in the absence of evidence the majority cannot claim a law will cause good (or bad). This leads her to conclude the law should be negated and requires at the least, a do over.
Such is a literalist position - if it ‘ain’t written, it aint’t real.’ She rejects opinion making in the absence of direct evidence. In her second claim, O’Brien writes when people leave the military and policing professions (indeed, lawyering and judging too), they become identical members of the citizenry. Again, literalist.
I would suggest the moral issue here is whether there exist different classes of citizenry.
If so, then some citizens have more access to power than others because the law says so. In this case, active-duty personnel in all policing professions have privileges regarding the possession of weapons that other citizens lack. Such is the argument for a law allowing inequality - we can justify it in scientific, philosophical (legal) and moral grounds based on the rules of evidence we choose prior. [This is relevant to Holder-White decision in that “rules” at present allow for precedence contrary to the written rules to serve as precedent].
If on the other hand, we suggest all categories of the citizenry must be equal, then we must also strike down the Protect Illinois Communities Act because it literally violates the idea that all citizens are equal. The PIC Act is flawed since it advocates inequality. All citizens are equal all should be able to possess everything (another literalist claim).
Finally, I find it odd that still today, in 2023, a lot of Americans what to take a literal what a collective of white men (WASPs). Even they did not envision today, much less a literal interpretation of “All men are created equal.” The framers, which included a lot of Virginians, intended to create a document that could protect their advantages. Hence the transition from old English law (Life, Liberty and the Pursuit of Property) becomes “life, liberty and the pursuit of happiness.’
Such was the Constitution they crafted, flawed though it was, capable of being modified going forward. Again, I apologize if my moral philosophy framework doesn’t apply in your more literalist approach. But if all law is moral (King), then the moral components must always be made transparent.
Comment by H-W Friday, Aug 11, 23 @ 3:27 pm
Well, the SCOIL got it wrong. Hopefully the SCOTUS will get it right.
Comment by Fivegreenleaves Friday, Aug 11, 23 @ 4:42 pm